<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 11, 1998
-------------------------------
SEARCH FINANCIAL SERVICES INC.
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(Exact name of registrant as specified in charter)
DELAWARE 0-9539 41-1356819
- ---------------------------- ------------------------ -------------------
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
600 N. PEARL STREET
SUITE 2500
DALLAS, TEXAS 75201-2899
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (214) 965-6000
-----------------------------
Not Applicable
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On May 11, 1998, Registrant's subsidiary, MS Financial, Inc. ("MSF"),
completed the sale of substantially all of its assets to the nominee of Fleet
Bank, N.A., agent for the MSF bank group, in complete satisfaction of MSF's
indebtedness to the bank group. That indebtedness was guaranteed by Registrant.
The sale was consummated pursuant to Section 363 of the Bankruptcy
Code in accordance with the terms of a Stipulation Authorizing Limited Use of
Cash Collateral and Providing Certain Remedies to Secured Creditor (the
"Stipulation"), and was approved by the Bankruptcy Court for the Northern
District of Texas, Dallas Division. Under the terms of the Stipulation, MSF
will be entitled to receive 65% of the proceeds from the liquidation of MSF's
receivables portfolio and other assets sold to Fleet Bank's nominee after
deducting therefrom an amount equal to the obligations owed under the loan
agreement, estimated at approximately $55 million, plus continuing interest and
certain costs, including servicing costs equal to the lesser of (1) all costs
and expenses actually incurred by Fleet Bank's nominee with respect to
servicing and liquidation of the assets conveyed to it and (2) the greater of
4% per year of the principal balance of the receivables serviced or $20 per
month per receivable serviced. There can be no assurance that collections on
the MSF receivables portfolio will be sufficient to allow MSF to share therein.
At March 31, 1998, the book value of MSF's assets was approximately
$63.7 million, excluding unearned interest of approximately $18 million. At that
date, the debt owed to the bank group was approximately $58.6 million.
On May 13, 1998, Registrant announced that the Bankruptcy Court had
denied the motion of Hall Phoenix/Inwood, Ltd. for appointment of a Trustee for
Registrant.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP.
See the information contained in response to Item 2, which information
is incorporated herein by reference.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(b) Pro forma financial statements
The pro forma financial information required to be presented
herein pursuant to Article 11 of Regulation S-X with respect to the
sale of the assets of MSF reported in Item 2 will be filed by
amendment to this Report as soon as practicable after that information
has been prepared.
(c) Exhibits
2.1 Order Pursuant to Section 363 of the Bankruptcy Code Authorizing
Sale of Substantially All Assets of the Estate
2.2 Order Pursuant to Motion for Final Order Authorizing Use of Cash
Collateral and for Approval of Stipulation with Fleet Bank, N.A.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SEARCH FINANCIAL SERVICES INC.
By: /s/ Ellis A. Regenbogen
---------------------------
Ellis A. Regenbogen
Executive Vice President
Dated: May 15, 1998
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
2.1 Order Pursuant to Section 363 of the Bankruptcy Code
Authorizing Sale of Substantially All Assets of the Estate
2.2 Order Pursuant to Motion for Final Order Authorizing Use of
Cash Collateral and for Approval of Stipulation with Fleet
Bank, N.A.
</TABLE>
<PAGE> 1
EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re:
SEARCH FINANCIAL SERVICES : CASE NO. 398-32129-RCM-11
ACCEPTANCE CORP., :
MS FINANCIAL, INC., : CASE NO. 398-32128-SAF-11
SEARCH FUNDING, CORP., : CASE NO. 298-32130-SAF-11
SEARCH FINANCIAL SERVICES, : CASE NO. 398-32131-SAF-11
INC., :
:
: Jointly Administered Under
DEBTORS : Case No. 398-32129-RCM-11
ORDER PURSUANT TO SECTION 363 OF
THE BANKRUPTCY CODE AUTHORIZING
SALE OF SUBSTANTIALLY ALL ASSETS OF THE ESTATE
The motion (the "Motion") of MS Financial, Inc. (the "Debtor") for
authority to sell substantially all assets of the Debtor pursuant to a certain
offer (the "Offer") contained in a Stipulation dated March 19, 1998 by and among
Fleet Bank, N.A. acting for itself and as agent for other banks in the lending
group ("Fleet"), the Debtor and the other three Chapter 11 debtors identified in
the caption above (collectively with the Debtor, the "Debtors") (the
"Stipulation"), attached to the Motion as Exhibit "A", and a certain Notice of
MS Financial's motion for authority to sell substantially all assets under
ss.363 of the Bankruptcy Code (the "Notice") having been brought before the
Court for hearing on April 23, 1998; and objections to the Motion having been
filed by Hall Phoenix/Inwood, Ltd. (the "Hall Objection") and by Rimmer,
Rawlings, MacInnis & Hedglin, P.A. (the "Rimmer Objection"); and an emergency
request for adjournment of the hearing on the Motion having been filed by the
Official Equity Committee; the Court having considered the Motion and the
Notice, the statements of counsel, and having taken notice of its own order
dated April 16, 1998 on the Debtors' motion for final order
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authorizing use of cash collateral and for approval of Stipulation with Fleet
Bank, N.A. and the evidence submitted in connection therewith; the Court having
been made aware of several bids offered by third parties to purchase the
Collateral (as defined in the Motion) the morning of April 23, 1998; no bid
having been sufficient to pay to Fleet in cash the Discounted Debt to which it
is entitled pursuant to the Stipulation this Court has already approved; the
Debtors having undertaken additional negotiations to produce a sale to a third
party to which Fleet might agree notwithstanding that such a sale would result
in Fleet's receiving less than the Discounted Debt; such negotiations having
occurred without a successful substitution of a third party bidder in place of
Fleet; the Debtor having now requested entry of an order on the Motion and the
Court having:
RULED, that this Court has jurisdiction over this matter pursuant to
28 U.S.C. Sections 157 and 1334 and that this matter is a core proceeding under
28 U.S.C. Section 157(b)(2)(N);
THE COURT HEREBY FINDS that:
A. Proper, timely, adequate and sufficient notice of the Motion and
the Notice has been provided in accordance with section 102(1) of the Bankruptcy
Code (11 U.S.C. Sections 101 et seq.) and Fed. R. Bankr. Pro. 2002 and 6004.
B. No other or further notice of the Motion, the Notice or of the
entry of this Order is necessary.
C. A reasonable opportunity to object and be heard regarding the
requested relief has been afforded to all interested persons and entities.
D. The Motion was duly and properly served on all required persons and
entities, including all persons claiming any interest in or lien upon the
Collateral to be purchased under, and as defined in, the Stipulation and
referenced in the Motion (the "Assets").
E. The Offer is the highest and best offer received by the Debtor
after a period of active solicitation and negotiation to sell the Assets.
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F. The parties have represented that the Stipulation was negotiated
and entered into in good faith, from arms-length bargaining positions; the
Debtors believe that Fleet is a purchaser in good faith with respect to the
Assets, as that term is used in the Bankruptcy Code, and, accordingly, is
entitled to the protection of section 363(m) of the Bankruptcy Code with respect
to the Assets to be purchased hereunder.
G. The provisions of section 363(b) and (f) of the Bankruptcy Code
have been complied with as to the Assets.
H. This Court previously entered an Order dated April 16, 1998
allowing the Debtor's Motion for Final Order Authorizing Use of Cash Collateral
And For Approval of Stipulation With Fleet Bank, N.A. and Approving And
Conditioning Such Use On Certain Remedies And Procedures Relating To The Sale of
Substantially All Financial Assets of MS Financial, Inc. (the "Approval Order").
I. The Debtor has advanced sound business reasons for seeking to sell
the Assets, including reasons for sale of the Assets as a whole, rather than
sales of portions thereof to different persons or entities, as set forth in the
Motion, and it is a reasonable exercise of the Debtor's business judgment to
accept the Offer in the Stipulation and to perform its obligations with respect
thereto.
J. The total consideration, including indirect benefits to the
Debtor's estate, and the unsecured creditors and shareholder herein, to be
realized by the Debtor pursuant to the Offer, is fair and reasonable and the
transactions contemplated by the Offer and the Stipulation are in the best
interest of the Debtor's estate and its creditors and shareholder.
K. A valid business purpose, even in the context of a probable
liquidation of the Debtor following the sale contemplated hereby, exists for
approval of the transactions contemplated by the Motion pursuant to section 363
of the Bankruptcy Code.
L. In the absence of a stay pending appeal, Fleet (or its nominee)
will be acting in good faith pursuant to section 363(m) of the Bankruptcy Code
in closing the
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transactions contemplated by the Offer and the Stipulation at any time following
entry of this Order.
M. Acceptance of the Offer and the Stipulation and all actions taken
or to be taken thereunder have been, and shall be deemed, duly authorized by the
Debtor's Board of Directors.
Now, therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. The Motion be, and it hereby is, granted and allowed in all
respects, and the Hall Objection be, and it hereby is, overruled.
2. The Rimmer Objection be, and it hereby is, overruled without
prejudice; provided, however, that the Debtor or Rimmer, Rawlings, MacInnis &
Hedglin, P.A. ("Rimmer") shall escrow and hold separate from any other Assets
transferred pursuant to the sale approved hereby that certain check identified
in said Objection numbered 696465 in the sum of $8,850.32, and any proceeds
therefrom, pending further order of the Court on the merits or, without further
order of the Court as stipulated by the Debtor, Fleet and Rimmer in any
Stipulation filed herein.
3. The Debtor's acceptance of the Offer and the transactions
contemplated thereby, be, and it hereby is, approved in all respects and the
Debtor be, and it hereby is, directed, authorized and empowered to enter into,
and to perform its obligations under and pursuant to, the Offer and the Approval
Order and to take such action as is necessary or appropriate to effectuate the
terms and conditions of the Offer and the Approval Order.
4. The Debtor be, and it hereby is, directed, authorized and empowered
pursuant to section 363(b) and (f) of the Bankruptcy Code to sell, or cause to
be sold, the Assets, including transfer of any personalty therewith, to Fleet
(or such nominee as it will identify at or before the closing), free and clear
of any and all liens, claims (as that term is defined in the Bankruptcy Code),
mortgages, guarantees, security agreements, pledges, charges, taxes,
obligations, rights, restrictions, interests (including any retaining or
<PAGE> 5
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possessory liens or interests) and encumbrances, whether arising prior to or
subsequent to the filing of the Chapter 11 petition initiating this case,
whether imposed by agreement, understanding, law, equity or otherwise, and
whether or not asserted pursuant to the Fleet Facility (as defined in the
Stipulation) or others (collectively, the "Encumbrances"), with all such
Encumbrances other than the Fleet Facility, to attach only to the proceeds of
sale with the same priority, validity, force and effect as they now have in or
against the Assets or any of them.
5. The purchase by Fleet (or its nominee) be, and it hereby is, deemed
made and consummated as a non-cash credit bid pursuant to section 363(k) of the
Bankruptcy Code in an amount equal to the Discounted Debt, as defined in
Paragraph 16(a)(4) of the Stipulation.
6. The following assets of the Debtor and its estate shall not be sold
or assigned to Fleet (or its nominee), except to the extent released as provided
in the Stipulation: any causes of action the Debtor may have that are
recoverable under section 550 of the Bankruptcy Code, and, at Fleet's option,
such leases, contracts or any other executory agreements or obligations not
otherwise assumed pursuant to the Offer and the Stipulation and existing at the
Closing.
7. Except as may be provided in the Stipulation, Fleet (or its
nominee) shall not be liable for any claims against the Debtor, shall not be
deemed to have assumed any of the Debtor's debts, claims, obligations,
liabilities or other indebtedness, whether incurred prior or subsequent to the
filing date of this proceeding and whether or not secured by the Assets or any
of them, and Fleet shall have no successor liabilities of any kind or character.
8. Each and every federal, state and local governmental agency or
department be, and it hereby is, directed to accept any and all documents and
instruments necessary or appropriate to consummate the transactions contemplated
by the Offer and
<PAGE> 6
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the Stipulation, including, without limitation, documents and instruments for
recording in (a) any governmental agency or department required to transfer to
Fleet (or its nominee) any of the Assets, and (b) county and state offices
wherein termination statements under the Uniform Commercial Code are authorized
to be filed.
9. Fleet (or its nominee) be, and it hereby is, authorized to endorse
the Debtor's name on any certificate of title or other form of security
agreement or title instrument under circumstances where, but for this sale, the
Debtor's endorsement would be required to realize on collateral pledged to the
Debtor in connection with its business as heretofore operated.
10. This Order shall be binding upon, and shall inure to the benefit
of, the Debtor and Fleet, and their respective successors and assigns,
including, without limitation, Fleet's nominee, if any, and any trustee
hereinafter appointed for the Debtor's estate.
11. This Court shall retain jurisdiction over the parties to the
extent provided in the Stipulation for the purpose of enforcing the provisions
of this Order and for the purpose of resolving any disputes that arise out of
the Stipulation or this Order.
12. In the absence of a stay pending appeal, if Fleet elects to close
under the Offer at any time after the entry of this Order, then, with respect to
the Offer approved and authorized herein, Fleet (and its nominee, if any) shall
be entitled to the protection of section 363(m) of the Bankruptcy Code if this
Order or any authorization contained herein is reversed or modified on appeal.
13. The Debtor be, and it hereby is, directed, authorized and
empowered to execute and deliver, or cause to be executed and delivered, any and
all documents as may be necessary or appropriate, including, without limitation,
bills of sale, certificates, general releases, assignments, letters of
instruction to obligors under notes, or otherwise, to implement the terms of the
Offer and the Stipulation.
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14. As allowed by Fed. R. Bankr. Pro. 7062, this Order shall be
effective and enforceable immediately upon entry.
SIGNED this 6th day of May, 1998.
/s/ Robert C. McGuire
--------------------------------
Honorable Robert C. McGuire
United States Bankruptcy Judge
<PAGE> 1
EXHIBIT 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: )
)
SEARCH FINANCIAL SERVICES ) CASE NO. 398-32129-RCM-11
ACCEPTANCE CORP., )
MS FINANCIAL, INC., ) CASE NO. 398-32128-SAF-11
SEARCH FUNDING CORP., ) CASE NO. 398-32130-SAF-11
SEARCH FINANCIAL SERVICES ) CASE NO. 398-32131-SAF-11
INC., )
) Jointly Administered Under
DEBTORS ) CASE NO. 398-32129-RCM-11
ORDER
Upon the Debtors' Motion for Final Order Authorizing Use of Cash
Collateral and for Approval of Stipulation with Fleet Bank, N.A. and Approving
and Conditioning Such Use on Certain Remedies and Procedures Relating to the
Sale of Substantially all Financial Assets of MS Financial, Inc. (the "Motion"),
the Court having considered the objections thereto, the Memoranda of Law
submitted in connection with the Motion, and the evidence admitted at the
hearing on the Motion conducted April 9, 1998, the Court hereby makes the
following findings and issues the following order:
Findings:
1. The Debtors and Fleet Bank, N.A. had executed a stipulation, a
copy of which is attached as Exhibit A to this Order (the "Stipulation"). At
hearing on April 9, 1998, the Debtors and Fleet Bank, N.A. agreed to amend the
Stipulation, and have now executed an Amendment to Stipulation, a copy of which
is attached as Exhibit B to this order. (As amended by the Amendment to
Stipulation is referred to below as the "Amended Stipulation.")
2. On the basis of the evidence offered at hearing, the Court adopts
as findings of fact the averments contained in paragraphs 1-14 of the Motion and
its findings stated in the record.
3. There is good cause for approval by the Court of the Amended
Stipulation, and entry of the relief granted by this order.
Order
It is therefore ORDERED that:
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1. The Motion is hereby ALLOWED to the extent that it seeks approval
of the Amended Stipulation; and
2. The Amended Stipulation is hereby approved.
Dated April 16, 1998.
/s/ Robert C. McGuire
------------------------------
Robert C. McGuire
United States Bankruptcy Judge
<PAGE> 3
EXHIBIT A
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: ) CHAPTER 11
)
SEARCH FINANCIAL SERVICES ) CASE NO. 398-32129-RCM-11
ACCEPTANCE CORP., ) CASE NO. 398-32128-SAF-11
MS FINANCIAL, INC., ) CASE NO. 398-32130-SAF-11
SEARCH FUNDING CORP., ) CASE NO. 398-32131-SAF-11
SEARCH FINANCIAL SERVICES ) (Jointly Administered)
INC., )
)
DEBTORS )
)
STIPULATION AUTHORIZING LIMITED USE OF CASH COLLATERAL
AND PROVIDING CERTAIN REMEDIES TO SECURED CREDITOR
MS Financial, Inc., Debtor and Debtor-In-Possession, a Delaware
corporation ("MS"), Search Financial Services Inc., Debtor and
Debtor-in-Possession, a Delaware corporation and the sole shareholder of MS
("Search"), Search Financial Services Acceptance Corp., Debtor and
Debtor-In-Possession, a Texas corporation and a subsidiary of Search ("Search
Acceptance"), and Search Funding Corp., Debtor and Debtor-In-Possession, a Texas
corporation and a subsidiary of Search ("Search Funding", and together with MS,
Search and Search Acceptance, the "Debtors") and Fleet Bank, N.A., for itself
and as agent for other banks in the lending group ("Fleet"), MS's pre-petition
secured lender, hereby stipulate and agree to MS's use of cash collateral on the
terms and conditions of this Stipulation Authorizing Limited Use of Cash
Collateral ("Stipulation").
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RECITALS
WHEREAS, these cases were commenced by the filing of voluntary
petitions for relief under Chapter 11 of Title 11, United States Code (the
"Bankruptcy Code") on March 6, 1998 (the "Petition Date") in the United States
Bankruptcy Court for the Northern District of Texas, Dallas Division (the
"Court");
WHEREAS, since the Petition Date, the Debtors have operated their
businesses and managed their affairs as debtors-in-possession pursuant to
Sections 1107 and 1108 of the Bankruptcy Code. Neither a trustee nor a
creditors' committee has been appointed in these cases as of the filing of this
Stipulation and Motion;
WHEREAS, the Court has jurisdiction of this matter pursuant to 28
U.S.C. Section 1334;
WHEREAS, this matter is a core proceeding pursuant to 28 U.S.C.
Section 157(b)(2);
WHEREAS, MS, Search, Fleet and certain other bank participants in the
Fleet Facility, as defined below, for which Fleet acts as agent (the "Other
Banks") are parties to a certain Loan Agreement dated as of July 31, 1997 (the "
Loan Agreement" and more generally with the other loan documents described below
or otherwise executed in conjunction with the Loan Agreement, the "Fleet
Facility");
WHEREAS, incident thereto MS executed promissory notes to Fleet and to
the Other Banks under the Loan Agreement, which notes reflected an original
aggregate commitment of $70,000,000 and under which, from time to time,
indebtedness would exist reflecting the obligations of MS for borrowings and
other fees, expenses and costs under the Fleet Facility (the "Notes");
WHEREAS, MS's indebtedness and obligations pursuant to the Fleet
Facility are secured upon the terms of (a) a certain Security Agreement dated as
of July 31, 1997 (the "Security Agreement") and (b) a certain Pledge Agreement
dated as of July 31, 1997 (the "Pledge");
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WHEREAS, the Security Agreement granted to Fleet for the benefit of
itself and the Other Banks a first priority security interest in substantially
all of MS's existing and after-acquired assets, as more fully described in
Exhibit "A" attached hereto (the "Assets");
WHEREAS, the Pledge granted to Fleet for the benefit of itself and the
Other Banks a first priority security interest in MS's equity (the "Stock") in
its wholly owned subsidiary, MS Auto Receivables Company, a Delaware corporation
("MS Auto");
WHEREAS, together the Assets and the Stock constitute collateral to
secure the Notes and all other obligations under the Fleet Facility (the
"Collateral");
WHEREAS, generally MS is a financial services company specializing in
the purchase and management of non-prime motor vehicle receivables, essentially
obligations of consumer obligors secured by depreciating motor vehicles (the "MS
Receivables");
WHEREAS, generally MS Auto is in the same business as MS, except that
(a) its ownership of non-prime motor vehicle receivables (the "MS Auto
Receivables") arose as a result of a certain securitization transaction that
closed in 1995 and (b) since the securitization it has not purchased new MS Auto
Receivables;
WHEREAS, MS used loan proceeds from the Fleet Facility to finance its
non-prime motor vehicle financing business. In the ordinary course of its
business, MS was permitted to draw down funds advanced by Fleet and the Other
Banks based upon a formula (the "Borrowing Base Formula"). The Loan Agreement
contemplated that MS was to pay Fleet all of the collections that MS received
from its customers, whether (i) directly, where MS initially had access to the
funds, or (ii) indirectly, through lockbox arrangements where MS lacked access
to the funds, which were forwarded by the deposit bank directly to Fleet. The
Borrowing Base Formula permitted MS, so long as it was not
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in default, to draw down funds against a percentage of its then existing
qualified collateral, consisting in the main of MS Receivables on eligible
automobile loans;
WHEREAS, MS has historically collected the MS Receivables directly or
indirectly through Search Acceptance, and employees thereof;
WHEREAS, the lockbox arrangement referenced above is embodied in,
among other documents, a certain Lockbox and Controlled Account Agreement dated
as of July 31, 1997 by and among Fleet, MS and Hibernia National Bank, the
depository bank located in New Orleans, Louisiana (the "Lockbox Agreement");
WHEREAS, all of MS's obligations under the Fleet Facility are
guaranteed by Search;
WHEREAS, on February 3, 1998 Fleet accelerated all obligations due it
under the Fleet Facility and demanded repayment of the debt and the assembly of
all Collateral;
WHEREAS, on February 5, 1998 Fleet commenced an action against MS and
Search in the Dallas County, Texas District Court, 193rd Judicial District,
Cause No. DV98-1006 (the "Texas Action"), in which action Fleet sought judgment
in the amount of its unpaid loans and specific performance of the Security
Agreement, including injunctive relief;
WHEREAS, on February 6, 1998 a temporary restraining order was entered
by consent of the parties, which order was continued in effect on February 20,
1998;
WHEREAS, on February 24, 1998 a further temporary injunction was
entered by consent of the parties, which order (the "Temporary Injunction
Order"), among other things, required MS to turn over to Fleet or its Servicer,
currently CSC Logic/MSA d/b/a Loan Servicing Enterprise (the "Servicer"), all
chattel paper, all proceeds thereof and all other Collateral comprised of the MS
Receivables and all books and records associated therewith on or before March 4,
1998;
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WHEREAS, the Temporary Injunction Order was modified on March 4, 1998
to extend the transfer date to March 6, 1998;
WHEREAS, no such turnover occurred because, as MS had informed the
Court and Fleet in the Texas Action it might do, it commenced this proceeding on
the Petition Date;
WHEREAS, as of the Petition Date, the unpaid balance of principal and
accrued but unpaid interest on the Notes, exclusive of fees and payments other
than interest due under the Fleet Facility, attorneys' fees, costs and expenses,
was $62,342,649.68, consisting of $60,749,582.08 in principal and $1,593,067.60
in interest. By way of example, section 3.1(ii) of the Loan Agreement states
that Fleet may recover, among other things, an acceleration fee of 5% and
section 10.1 of the Loan Agreement states that Fleet may recover all of its
reasonable out-of-pocket costs and expenses, including reasonable attorneys'
fees, in enforcing its remedies pursuant to the Fleet Facility;
WHEREAS, the proceeds in the form of cash or cash equivalents from (i)
the collection of any MS Receivables, (ii) the disposition of any repossessed or
returned collateral securing the MS Receivables, and (iii) the sale of all or
any portion of the Assets or the Stock, and any and all dividends or other
distributions from the Stock, constitute and will constitute Fleet's "cash
collateral" as that term is defined in ss. 363(a) of the Bankruptcy Code;
WHEREAS, in conjunction with the Lockbox Agreement payments of MS
Receivables are required to be deposited into a blocked account at Hibernia Bank
in New Orleans, Louisiana to be disbursed to Fleet in accordance with the
Lockbox Agreement;
WHEREAS, as of the Petition Date other payments of MS Receivables or
dispositions of other Assets were being paid directly to, or collected directly
by, MS or by Search Acceptance for application to the Fleet Facility as
contemplated by the Temporary Injunction Order;
<PAGE> 8
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WHEREAS, by Agreed Order Regarding Limited Use of Cash Collateral (MS
Financial, Inc.) (the "Interim Order") entered on March 9, 1998 the Court
approved the terms and conditions by which MS could use Fleet's cash collateral
for the two weeks ending March 21, 1998, subject to further extensions as
provided therein or further court order;
WHEREAS, MS wishes to use Fleet's cash collateral beyond the terms of
the Interim Order, and Fleet has consented to the use of its cash collateral, in
accordance with the terms and conditions of this Stipulation;
WHEREAS, the Debtors desire to maximize the value of the Collateral,
believing that there is substantial equity therein available to MS, and
indirectly to Search;
WHEREAS, MS intends, to the extent and as promptly as possible, to
cause a sale of all or substantially all of the Collateral to a third party
pursuant to ss.363(c) of the Bankruptcy Code;
WHEREAS, the Debtors have asked for accommodations from Fleet to
enable the Debtors the time to complete negotiations with potential buyers for
MS's assets and to document such a sale;
WHEREAS, the Debtors have further sought to structure a compromise
with Fleet, conditioned upon such a sale, whereby upon a transfer of MS's
assets, MS's estate will be able to realize what it believes to be the equity in
MS's assets that might not otherwise exist; and
WHEREAS, this Stipulation has been entered into by all parties in good
faith, and due cause has been shown for the entry of an order approving this
Stipulation.
<PAGE> 9
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STIPULATION
Based upon the foregoing recitals, the Debtors and Fleet hereby AGREE
AND STIPULATE as follows:
1. Subject to the terms and conditions of this Stipulation, and
subject to any prior orders of the Court entered with Fleet's agreement having
to do with MS's use of cash collateral prior to the date this Stipulation is
approved, MS may use Fleet's cash collateral as follows: for an initial period
(the "Initial Period") from March 9, 1998 through May 2, 1998, MS may use
Fleet's cash collateral to pay the costs associated with the management, sale,
collection and/or liquidation of the Collateral, which costs shall materially
comply with those expenditures identified in the budget attached hereto in the
form of Exhibit "B", upon the following basis:
(a) for the two weeks beginning March 9 and 16, 1998, $120,000 per
week at the rate of no more than $20,000 per business day (Monday to
Saturday inclusive) ("Day");
(b) for the two weeks beginning March 23 and 30, 1998, $100,000
per week at the rate of no more than $16,667 per Day; and
(c) for the four weeks beginning April 6, April 13, April 20 and
April 27, 1998, $75,000 per week at the rate of no more than $12,500
per Day,
provided, however, that nothing herein is intended to or shall have the effect
of duplicating MS's permission to use cash collateral to the extent the time
periods set forth above are also covered by prior orders of the Court.
Any collections received on a Sunday shall be deemed received on the
following Monday for purposes hereof. The Initial Period may be extended for
successive one (1) week periods by the filing in this proceeding of a joint
written notice by Fleet and MS without need of further action by this Court,
provided, however, that absent further court order such a joint notice shall
specify the agreement of the parties to the amount of cash
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collateral permitted to be used, not to exceed $75,000 per week at the rate of
no more than $12,500 per Day and to be used for budgetary purposes to be
attached to such notices and to be consistent with those set forth or referenced
in Exhibit "B." The right of MS to use cash collateral, notwithstanding anything
to the contrary herein, shall cease upon a termination of this Stipulation as
provided in Paragraph 20 below.
2. As adequate protection to Fleet and to safeguard Fleet against any
diminution in the value of the Collateral arising from MS's use of cash
collateral, pursuant to Sections 361 and 363(e) of the Bankruptcy Code, Fleet is
hereby granted for the benefit of itself and the Other Banks a continuing
post-petition replacement lien and security interest in all property, assets and
interests in property of MS, of every name, nature and description, and the
proceeds thereof, not subject to the application if at all, of Sections 551 of
the Bankruptcy Code, whether existing on the Petition Date or acquired or
arising thereafter, including proceeds of, or transfers avoided as a result of,
causes of action arising under the Bankruptcy Code or otherwise, which liens
shall be junior only to all valid, enforceable and perfected liens in existence
as of the Petition Date, all of which shall be equivalent to a lien granted
under Sections 364(c)(2) and (3) of the Bankruptcy Code. The validity,
enforceability, and perfection of Fleet's post-petition lien shall not be
subject to the "equities of the case" exception to Section 552(b) of the
Bankruptcy Code and shall not depend upon filing, recordation, or any other act
required under applicable state or federal law, rule or regulation. If Fleet
hereafter requests MS to execute and deliver to Fleet financing statements,
mortgages, deeds of trust, applications for lien notations, or other instruments
or documents considered by Fleet to be reasonably necessary or desirable to
further evidence the perfection of liens and security interests herein granted,
MS is authorized and directed to execute and deliver such instruments and
documents to Fleet, and Fleet is granted relief from the automatic stay of
Section 362 of the Bankruptcy Code in order to perfect such liens and security
interests.
<PAGE> 11
-9-
3. As further adequate protection to Fleet for MS's use of cash
collateral, Fleet is hereby granted for the benefit of itself and the Other
Banks an administrative priority claim pursuant to Section 507(b) of the
Bankruptcy Code, superior to any and all other costs and expenses of the kind
specified in, and pursuant to, Sections 507(a)(1), 506(c), 507(b) and 726(b) of
the Bankruptcy Code, to the extent the liens granted pursuant to this
Stipulation prove inadequate to protect Fleet from any post-petition diminution
in the value of its interest in the pre-petition Collateral, and the proceeds
thereof arising from MS's use of cash collateral.
4. The terms and provisions of this Stipulation with respect to the
liens and security interests granted hereby, and the super-priority
administrative expense claim, shall continue for the duration of this Chapter 11
case and for the duration of this case under any other chapter of the Bankruptcy
Code to which it may be converted, and such liens and security interests shall
maintain the priorities established by the Stipulation until satisfied and
discharged, notwithstanding the appointment of a trustee or examiner in this or
any converted case or the dismissal of this or any converted case, and
notwithstanding the expiration or termination of this Stipulation, as it may be
amended or extended from time to time.
5. In the event any or all of the provisions of this Stipulation are
hereafter modified, amended, or vacated by a subsequent order of this Court or
any other Court, such modification, amendment, or vacation shall not affect the
validity of any right or obligation arising under an order approving the
Stipulation prior to the effective date of such modification, amendment or
vacation, which shall be governed in all respects by the provisions of this
Stipulation.
6. Nothing contained herein shall be deemed a finding by the Court, or
an acknowledgment by Fleet, that the liens and priority claims granted Fleet by
this Stipulation adequately protect Fleet for MS's use of cash collateral.
<PAGE> 12
-10-
7. As long as this Stipulation is in effect, MS and, where necessary to
comply herewith, each of the other Debtors shall:
a. insure the Assets in amounts and for the risks, and by the
entities, established as the practice of the parties under the Fleet
Facility;
b. apply Fleet's cash collateral and other sources of cash available
to MS hereunder to the expenses of operation of their businesses
substantially consistent with the budget(s) submitted to the Court and
in particular, as a first priority, to the payment as and when due of
payroll and payroll taxes concerning employees who service the MS
Receivables and the MS Auto Receivables;
c. except as expressly permitted in Paragraph 1 hereof and other
than in respect to remittances made by obligors directly to the
Hibernia lockbox maintained at Hibernia National Bank for Fleet's
benefit, remit and cause any of their subsidiaries to remit as and when
received on a daily basis to the Hibernia lockbox all collections and
other proceeds from MS Receivables, or other Assets that are received
by or for the benefit of MS, to Fleet, in the identical form received,
whether cash, original checks, money orders, Western Union, ACE Cash
Express or otherwise;
d. serve Fleet and its co-counsel with a copy of each monthly status
report filed by the Debtors in this case as required by the Court or
the United States Trustee;
e. provide Fleet copies of reports concerning the liquidation of the
Collateral regularly prepared by or for the Debtors and their
management in the course of the operation of the Debtors' businesses;
f. provide Fleet a daily report concerning any and all collections
of the MS Receivables, proceeds received arising from the foreclosure
sale of
<PAGE> 13
-11-
repossessed or returned motor vehicles securing the MS Receivables,
and proceeds received from the disposition of any Assets;
g. provide Fleet, bi-weekly, an unaudited cash flow report showing
the sources of all cash received by the Debtors for their operations
and their uses of such cash during the bi-weekly period, and such other
reports as the parties may agree, as the Debtors shall have agreed to
provide to any Creditors' Committee (to the extent not privileged) or
as the Court or the United States Trustee may direct;
h. comply in all material respects, where the Debtors have the
resources or staff to do so, with the loan documentation comprising the
Fleet Facility, other than as modified herein expressly or by necessary
implication or to the extent that compliance would contravene the
Bankruptcy Code;
i. take such actions and perform such duties as are set forth in
Paragraph 20(b) through (e) and (g) below (but not the actual transfer
or conversion of the Collateral or the systems therefor); and
j. in respect to MS Auto, and MS's control thereof as sole
stockholder, neither allow to be made, nor accept, any dividends or
other distributions relating to MS's equity interest in MS Auto (but to
the extent such distributions are in fact received, turn over the same
to Fleet hereunder as cash collateral), and otherwise take whatever
actions are required:
(i) to provide Fleet with a current list, in detail reasonably
requested by Fleet, of MS Auto's assets and liabilities;
(ii) to provide Fleet with such financial information concerning
MS Auto as is of the type, and with the same timeliness, as is required
to be provided hereunder by MS to Fleet;
(iii) to prohibit the purchase by MS Auto of any motor vehicle or
consumer loans with the proceeds of collections of MS Auto Receivables;
and
<PAGE> 14
-12-
(iv) to prohibit MS Auto from using any of the proceeds of
collections of MS Auto Receivables, proceeds received arising from the
foreclosure sale of repossessed or returned motor vehicles securing MS
Auto Receivables and proceeds received from the disposition of any
other assets owned by MS Auto, for any purpose other than the payment
in the ordinary course of its own debts to lenders or to those
rendering goods and services to it.
8. As long as this Stipulation is in effect, the Debtors shall not:
a. interfere, by notice, action or otherwise, with the ongoing and
orderly administration of the Lockbox Agreement and the payments of
deposits made thereunder by Hibernia National Bank to Fleet;
b. interfere, by notice, action or otherwise, with the ongoing and
orderly flow of payments by MS's account debtors to MS's lockbox
established with Hibernia National Bank; and
c. purchase any motor vehicle or consumer loans with the cash
collateral.
9. The Debtors shall permit Fleet, its agents and professionals, upon a
reasonable basis in respect to each of the following:
a. to review the pre-petition, as well as the post-petition, books
and records of the Debtors or any of their subsidiaries maintained in
connection with the servicing of the Collateral;
b. to review the books and records of MS Auto or those books and
records of the Debtors or any of their subsidiaries maintained in
connection with the servicing of the MS Auto Receivables;
<PAGE> 15
-13-
c. to have access to any of the Assets for the purpose of
appraising its or their value;
d. to use the services of Zolfo-Cooper, LLC, or other financial
consultants of Fleet's selection, to have access to the business
premises and the books and records of the Debtors, and, where relevant
to the servicing of the assets of MS or MS Auto, any of their
subsidiaries, and personnel of any of the Debtors and any of their
subsidiaries who are knowledgeable concerning the same; and
e. to use the services of a servicing company, including without
limitation, the Servicer, to have access to the business premises of
the Debtors and the Debtors' (or any of their subsidiaries')
facilities, and the files, records and systems of the Debtors and their
subsidiaries relating to the management, servicing and collection of
the MS Receivables and the MS Auto Receivables and any repossessed or
returned motor vehicles or the like, and the personnel of any of the
Debtors or any of their subsidiaries, including MIS specialists on
site, who are knowledgeable concerning the same.
10. Except as otherwise provided for in this Stipulation, Fleet shall
be entitled to receive and apply to the Fleet Facility, including the Notes, all
payments or proceeds of cash collateral made or delivered and to be made or
delivered to it pursuant to the Lockbox Agreement and by or on behalf of MS
pursuant to this Stipulation from and after the Petition Date, which payments or
proceeds of cash collateral may be applied to interest, principal, late charges,
other fees and payments due under the Fleet Facility, or the obligation of MS to
reimburse attorneys' fees, costs and/or expenses at Fleet's discretion, subject
to Fleet's obligation to account for all such applications at the written
request of MS, and further subject to MS's right to contest the application of
such payments or proceeds if this Stipulation shall terminate other than as a
result of a
<PAGE> 16
-14-
consummation of MS's sale of the Collateral. To the extent that any of Fleet's
cash collateral existed as of, or may accumulate after the Petition Date prior
to the entry of an order approving this Stipulation, the use of which has not
been authorized by the Interim Order, subject to the provisions of this
Stipulation the same shall immediately be turned over to Fleet and shall not be
segregated or retained by any of the Debtors or any of their subsidiaries. In
the case of MS, such turnover of payments or proceeds of cash collateral shall
be made as provided, where relevant, in Paragraph 7(c) above. In the case of any
cash collateral not yet or to be delivered to Fleet under the Lockbox Agreement,
such turnover may be requested by Fleet and shall be performed by Hibernia
National Bank as required by such agreement.
11. The Debtors hereby acknowledge that as of the Petition Date the
unpaid balance of principal and accrued but unpaid interest on the Notes,
exclusive of fees and payments other than interest due under the Fleet Facility,
attorneys' fees, costs and expenses, was $62,342,649.68, consisting of
$60,749,582.08 in principal and $1,593,067.60 in interest. The Debtors further
hereby acknowledge the validity, perfection, enforceability, priority, and
non-avoidability of Fleet's pre-petition liens and security interests in the
Collateral, and waive the right to challenge or to object thereto; provided,
however, that the Debtors do not waive, and reserve the right to contest, (i)
the value of the pre-petition Collateral (ii) depending upon such value, the
respective amounts of allowed secured and unsecured (if any) claims under the
Fleet Facility, and (iii) the total unpaid balance due under the Fleet Facility
as of the Petition Date (and thereafter, if applicable) in excess of the unpaid
balance of principal and interest on the Notes agreed to above.
12. Except as expressly provided for in this Stipulation or by
application of the Bankruptcy Code, nothing contained herein shall:
<PAGE> 17
-15-
(a) constitute a waiver by Fleet or the Other Banks of any rights
which may exist under and with respect to the Fleet Facility, including
all loan documents referenced above, and the Collateral, including,
without limitation, (i) the right to exercise with respect thereto all
of the rights of a secured party under the Security Agreement and
Pledge, the Uniform Commercial Code and other applicable law, or (ii)
the right to seek additional adequate protection or to challenge any
impairment of its respective claim or the Collateral, and incident
thereto to introduce such evidence of its claim and Collateral value as
may be appropriate in the circumstances;
(b) constitute a waiver by Fleet or the Other Banks of the right
to seek to dismiss any of these Chapter 11 cases, to move for the
appointment of a Chapter 11 trustee, to seek relief from the automatic
stay or to exercise any other rights which it or they may have under
the Bankruptcy Code, provided, however, that Fleet and the Other Banks
shall not seek to dismiss any of these cases, to appoint a trustee, to
obtain stay relief or otherwise take action in the Bankruptcy Court,
other than in respect to rights expressly belonging to Fleet hereunder,
that would prevent MS from performing hereunder, and in particular from
consummating the sale referenced in Paragraph 16 below, so long as this
Stipulation is in effect and not terminated;
(c) constitute a waiver by the Debtors of any rights they may have
(i) to oppose motions by Fleet or the Other Banks within the purview of
subparagraph (b) above, or (ii) to seek to use, sell or lease pursuant
to the provisions of Section 363 of the Bankruptcy Code, the
Collateral, or proceeds thereof, and any other property in which Fleet
is granted a security interest hereunder, provided, however, that MS
shall not seek to use Fleet's cash collateral
<PAGE> 18
-16-
during the Initial Period (as it may be extended by agreement) in an
amount beyond the limits set forth in Paragraph 1 above;
(d) constitute an admission, or otherwise evidence any type of
acknowledgment, that MS and each of the other Debtors is not an
independent corporation, entitled to be treated as such, as a matter of
law, in these proceedings;
(e) affect in any way any rights and obligations among the Other
Banks and Fleet, provided, however, that all such banks shall be
entitled to all of the benefits of this Stipulation;
(f) constitute consent by Fleet to the use of its cash collateral
other than as provided herein; or
(g) obligate Fleet to permit the use of its cash collateral other
than as provided herein or obligate Fleet or the Other Banks to advance
funds to any of the Debtors for any reason, including, without
limitation, for the payment of expenses of administration under the
Bankruptcy Code.
13. In consideration of MS's ability to use cash and non-cash
collateral, and in view of the effect of such use, no expenses of administration
of the Debtors' cases shall be charged against any of Fleet's Collateral, or
charged to Fleet, pursuant to Section 506(c) of the Bankruptcy Code during the
entire bankruptcy case, all of which rights, if any, are hereby waived forever
by the Debtors on behalf of their respective bankruptcy estates and the
Debtors' creditors. Notwithstanding the foregoing, the lien and the priority
granted to Fleet herein, the liens possessed by Fleet as of the Petition Date,
and the cash collateral generated therefrom, up to an aggregate amount equal to
$261,000, shall be reserved for two purposes, (i) one, up to an aggregate
amount equal to $11,000 (to be made available by Fleet either directly or
through additional use of cash collateral upon the request of the Debtors as
and when due), for payment of any fees to the United States Trustee actually
<PAGE> 19
-17-
due and payable by MS and by any of the other Debtors for the Initial Period (as
it may be extended by agreement) in respect to the Debtors' Chapter 11 cases
pursuant to 11 U.S.C. Section 1930(6); and (ii) two, up to an aggregate amount
equal to $250,000, for payment of the reasonable fees, costs and expenses
incurred from the Petition Date to the date this Stipulation terminates of any
professionals retained by MS, and upon entry of an order approving payment of
any of MS's professionals' fees, costs and expenses, Fleet is authorized to pay
the same from Fleet's cash collateral directly to such professionals; provided,
however, that no cash collateral shall be used to pay any fees, costs and
expenses incurred by investigating or asserting any claims or causes of action
against Fleet or the Other Banks, or Fleet's liens or claims, or in connection
with any motion filed by MS seeking entry of an order authorizing MS to utilize
cash collateral without Fleet's consent. The entry of this Order is without
prejudice to Fleet's rights to examine or object to any application seeking an
award of fees to any professional retained by MS.
14. The Debtors will promptly notify Fleet in writing of all
prospective purchasers of all or substantially all of the Collateral with which
they have been in contact over the past six months and with which they initiate
contact hereafter, and all bona fide offers hereafter to purchase all or
substantially all of the Collateral. On the second and fourth Friday of each
month, MS shall provide Fleet's designated representative(s) by telephone with a
status report on the negotiations, if any, with each such prospective purchaser.
With MS's permission Fleet may contact such prospective purchaser(s) and may
discuss the Debtors' business and financial affairs with it or them subject to
an obligation to keep such information that has not been made available to the
public confidential; provided, however, that nothing herein is intended to or
shall operate to prevent Fleet or any of the Other Banks from transferring or
negotiating to transfer to any party whatsoever all or any portion of the Fleet
Facility or individual interests therein held by Fleet individually or by any of
the Other Banks.
<PAGE> 20
-18-
15. Except as expressly provided for in this Stipulation, and effective
immediately upon the termination of this Stipulation as provided in Paragraph 20
below for any reason whatsoever other than (a) denial by the Court, or by a
final decision of any appellate court, of the Sale Motion described in Paragraph
16(a) below other than as a result of MS's withdrawal of the motion or a failure
in good faith to seek its approval, and (b) an Event of Default as defined in
Paragraph 19 below arising for a reason unrelated to actions or the failure to
act hereunder by any of the Debtors, all defenses or claims of every kind or
nature, whether existing by virtue of state, federal bankruptcy or
non-bankruptcy law, by agreement or otherwise, against Fleet or the Other Banks
in connection with the Fleet Facility, as such defenses or claims may presently
exist, are hereby forever waived, relinquished and released by the Debtors and
their successors and assigns, on their own behalf and on behalf of their
bankruptcy estates, against Fleet, its successors and assigns, the Other Banks,
and their successors and assigns, and its and their parent corporations,
affiliates, officers, directors, agents, employees and attorneys, including
without limitation, affirmative defenses, counterclaims, claims, causes of
action, setoffs, deductions, recoupment or other rights and further including
without limitation (i) the right of Fleet to the payments and proceeds from the
Collateral, (ii) the conduct of Fleet and the Other Banks in administering the
Fleet Facility prior to the date hereof, and (iii) rights, if any, under all of
the avoiding powers granted to any of the Debtors by the Bankruptcy Code,
including but not limited to those powers under 11 U.S.C. Sections 542 to 553,
inclusive.
16. (a) MS anticipates that it will be able to locate a buyer for, or
might otherwise consider a public auction of, all or substantially all of the
Collateral during the pendency of these proceedings and, if so, or if MS wishes
to take advantage of Fleet's willingness to purchase its Collateral on the terms
described below, MS intends to file a motion seeking court approval of such a
sale pursuant to section 363 of the Bankruptcy
<PAGE> 21
-19-
Code (the "Sale Motion"). In the event that MS files a Sale Motion in good faith
on or before April 2, 1998, unless such date is extended by Fleet in the form of
a written notice filed in MS's proceeding, and expressly subject to all of the
conditions stated in Paragraph 16(c) below, Fleet agrees that it, and if so
required by the Fleet Facility, the Other Banks,:
(1) provided the Sale Motion is in form and content reasonably
acceptable to Fleet and consistent with any express terms of this
Stipulation, will consent to the Sale Motion;
(2) may be designated as an offeror, and by this Stipulation, on a
continuing non-revocable basis so long as this Stipulation is in effect
and has not been terminated pursuant to Paragraph 20 below offers to
purchase, and upon Court approval of such offer and the grant of
authority to MS to sell its assets to Fleet, will purchase, all of the
Collateral and the payments and proceeds thereof, as is and where is,
in its discretion taking title in its own name or that of a nominee,
irrespective of whether or not (i) it is approved by the Court as the
initial buyer (or high bidder) for the Collateral, (ii) it is approved
by the Court as a secondary buyer or bidder for the Collateral in the
event the primary buyer or bidder fails to consummate a sale authorized
to be made to it by any order entered on the Sale Motion, or (iii) MS
initially selects or accepts an offer to purchase such assets from a
different entity.
(3) in the event that the Sale Motion results in a public auction,
will be a bidder, in its discretion taking title in its own name or
that of a nominee;
(4) in the event that the Sale Motion results in a consummated
private sale or public auction, in either case to a third party not
Fleet's nominee, will agree to receive from the proceeds of such sale
in satisfaction of its right as a secured creditor under the Fleet
Facility to impress its lien upon the proceeds of sale, a
<PAGE> 22
-20-
reduced amount equal to the "Total Indebtedness", as defined in
Paragraph 16(b) below, decreased further by a sum equal to ten (10%)
percent thereof (the resulting net figure being the "Discounted Debt");
(5) in the event it or its nominee purchases the Collateral and
receives title to the assets as described in the preceding
sub-paragraphs, will share with MS, 65% to MS and 35% to Fleet and the
Other Banks, on no less often than a monthly basis, all proceeds of the
collection and liquidation of the assets sold to it or such nominee by
MS (including without limitation for purposes of calculation of such
sharing, proceeds derived from the collection and liquidation of the MS
Auto Receivables net of the obligations of MS Auto to its creditors,
and, if at all, proceeds of any litigation arising from a failure of
any servicer of such assets to perform in compliance with any contracts
with Fleet or its nominee), net after actual receipt by Fleet of the
"Base Amount" as defined in Paragraph 16(b) below, provided, however,
that Fleet shall not liquidate or cause its servicer to liquidate any
of the MS Receivables or the MS Auto Receivables by sales in bulk or
the Stock other than as contemplated by Paragraph 17(ii) hereof;
(6) in furtherance of its obligations under subparagraph (5)
above, if applicable, will provide MS or any assignee thereof with a
monthly written report identifying such information as the parties may
agree upon, but in any event including the following: (i) an aging of
the MS Receivables and the MS Auto Receivables, (ii) charge offs of any
such receivables, (iii) proceeds received arising from such receivables
or from the foreclosure sale of repossessed or returned motor vehicles
securing such receivables, and (iv) the then outstanding Base Amount,
as defined in Paragraph 16(b)(2) below;
(7) in the event the Sale Motion results in a consummated sale,
whether or not Fleet or its nominee is the purchaser, (a) will covenant
not to
<PAGE> 23
-21-
pursue any deficiency claim under the Fleet Facility against any of the
Debtors, and (b) will deliver to the Debtors a release in form and
scope consistent with the release it will have received from the
Debtors pursuant to Paragraph 15 above, provided, however, that
notwithstanding anything in this subparagraph or elsewhere herein to
the contrary, and subject to the Bankruptcy Code, Fleet and the Other
Banks shall retain the right to use and advance claims as a result of
any such deficiency claim under the Fleet Facility, whether by way of
affirmative defense, setoff, recoupment, counterclaim or otherwise, for
the limited purpose of securing and preserving to Fleet and the Other
Banks to the extent possible the economic benefits to be derived by
Fleet and the Other Banks under this Stipulation, including the Sale
Motion and consummation of such sale as described in this Paragraph 16,
in the event that any party challenges any order(s) entered as
contemplated by this Stipulation or otherwise brings any action or
proceeding to challenge any aspect of the Fleet Facility, whether the
indebtedness, liens or perfection acknowledged hereunder by the
Debtors, or otherwise, or any of the acts or omissions of Fleet or the
Other Banks with respect thereto; and
(8) at any hearing on the Sale Motion acquiesce in MS's
determination, subject to court approval, as to which of several offers
or bids to purchase the Collateral, including Fleet's, if more than
one, is in the best interest of the estate of MS, provided, however,
that nothing herein is intended to or shall limit the conditions to
Fleet's performance hereunder set forth in Paragraph 16(c) hereof.
(b) For purposes of Paragraph 16(a) and (c) hereof:
(1) "Total Indebtedness" shall mean the unpaid balance of
principal on the Notes as of the Petition Date, PLUS (i) all
non-default interest thereon accruing thereafter until
consummation of the sale or
<PAGE> 24
-22-
transfer described in said paragraphs (the "Transfer Date")
(calculated without regard to the receipt of any post-petition
payments to Fleet) and (ii) all out-of-pocket disbursements for
reasonable costs, expenses and the fees of professionals,
including attorneys, Zolfo-Cooper and the Servicer, accruing after
the Petition Date until the Transfer Date, LESS all post-petition
payments to Fleet until the Transfer Date. Notwithstanding the
foregoing, for purposes of any calculations under this Stipulation
Total Indebtedness shall include any monies paid by Fleet pursuant
to the "carve-out" provisions of Paragraph 13 above if such
payments are made after the Transfer Date and were not otherwise
taken into account in calculating Total Indebtedness as of the
Transfer Date.
(2) "Base Amount" shall mean an amount equal to the Total
Indebtedness on the date of the actual conveyance of assets to
Fleet or its nominee PLUS (i) an amount equal to interest on the
Total Indebtedness at the non-default rate determined in, and
subject to the provisions of, sections 2.2 and 10.13 of the Loan
Agreement accruing thereafter, existing from time to time, and
(ii) a servicing fee and cost reimbursement based on the
following: the lesser of (I)(a) a monthly fee calculated in
respect to each motor vehicle retail installment contract
("Contract") of the greater of (x) 4% per annum computed on a
monthly basis of the principal balance of each of the Contracts as
of the first day of the month, or (y) $20.00 per month per
Contract that is serviced by Fleet or its nominee or agents
thereof as of the first day of the month; and (b) reimbursement
for all costs and expenses of the servicer, including conversion
fees and third party costs and expenses, under any servicing
agreement entered into by Fleet or its nominee in respect to the
Contracts, or (II) the total of all fees, costs
<PAGE> 25
-23-
and expenses actually incurred by Fleet or its nominee in respect
to the servicing and liquidation of the assets so conveyed by MS.
(c) Fleet's obligations in Paragraph 16(a) above are expressly
conditioned upon all of the following, unless any are waived in
the form of a written notice filed by Fleet in MS's proceeding:
(1) any sale to a third party not Fleet's nominee (i) must
be for a cash amount at least sufficient to pay Fleet, as a
secured creditor, the Discounted Debt or (ii) must be made
subject to the Fleet Facility as modified to the Discounted Debt
as of the date of closing, must be on terms and conditions
approved by Fleet and the Other Banks, and must be to a buyer
approved by Fleet and the Other Banks in their sole discretion;
(2) in the event of such a cash sale to a third party not
Fleet's nominee, whether public or private, Fleet, as a secured
creditor, must receive at the closing by wire transfer, or
certified or bank cashier's check of a bank reasonably
satisfactory to Fleet an amount equal to the Discounted Debt;
(3) any sale to Fleet or Fleet's nominee must be of all the
Collateral and free and clear of all interests, claims, liens and
encumbrances, including the Fleet Facility;
(4) any offer by Fleet to purchase at a private sale or bid
at a public sale shall be deemed made and will be consummated as a
non-cash credit bid pursuant to Section 363(k) of the Bankruptcy
Code in an amount equal to no less than the Discounted Debt;
(5) the sale must close on or before May 6, 1998 unless
extended by Fleet in the form of a written notice filed by it in
MS's proceeding;
<PAGE> 26
-24-
(6) the sale must be to Fleet, its nominee or a good faith
third party buyer;
(7) the Sale Motion must be allowed by the Court and must
include provisions relating to and requiring court approval of the
compromise and payment of Fleet's claims as secured party based
upon and consistent with the provisions set forth in this
Stipulation;
(8) this Stipulation must have been approved by the Court
and at the time of the sale closing any order thereon must be in
full force and effect, unmodified, not reversed on appeal and not
the subject of any stay pending appeal or otherwise; and
(9) Fleet will have the right in its discretion to finance
any third party bidder for the assets, whether at private or
public sale.
17. In the event of a transfer of the Collateral to Fleet or its
nominee pursuant to the Sale Motion:
(i) the Debtors and, where relevant, any of their subsidiaries,
agree to be bound thereafter by the provisions of Paragraph 20(a)-(j)
below;
(ii) the Debtors consent to Fleet's or its nominee's right to sell
all or substantially all of the Collateral to which it or its nominee
has taken title, including the MS Auto Receivables either directly or
indirectly as a result of a sale of the Stock, to any entity in bulk,
provided that Fleet or its nominee obtain such entity's agreement in
writing (a) to be bound by this Stipulation (including, without
limitation, Paragraphs 16(a)(5) and 16(a)(6) above) and any order(s)
thereon, and (b) to use as a servicer (if it itself is not such a
servicer) only companies of the general reputation and quality as the
Servicer;
(iii) the Debtors agree that under no circumstances shall Fleet or
its nominee, the Servicer or any other agent of or contractor to Fleet
or its nominee,
<PAGE> 27
-25-
or any assignee or transferee of Fleet or its nominee, be liable for
any purported failure to collect all of the MS Receivables or the MS
Auto Receivables so long as Fleet or its nominee, the Servicer or such
other agents or contractors or transferee observe procedures for
collection that do not constitute gross negligence or willful
misconduct with regard to such collection activities; and
(iv) Search will continue to file consolidated tax returns that
include MS Auto up to the time of sale and will use any consolidated
losses available to offset any gains of MS Auto. In addition, if Fleet
uses a nominee to take title to the Stock and Fleet so requests, Search
will agree to treat the purchase transaction with respect to the Stock
as a transaction under Section 338(h)(10) of the Internal Revenue Code.
18. Search, as guarantor of MS's indebtedness under the Fleet Facility,
acknowledges, subject to the provisions of the Bankruptcy Code and where not
otherwise expressly agreed to by Fleet in this Stipulation, that (i) the
Stipulation does not terminate, modify, waive, or provide a defense to Search on
its guaranty, and (ii) the indebtedness under the Fleet Facility, including
Search's guaranty, remains fully enforceable against Search to the full extent
provided for in the Loan Agreement.
19. The occurrence of any of the following events, unless waived by
Fleet in writing, shall constitute an "Event of Default" hereunder:
a. reversal, vacation or modification (without the prior consent
of Fleet) of the Court's order approving this Stipulation;
b. dismissal of any of the Debtors' Chapter 11 cases except in the
case of Search Funding;
c. any knowing and material misrepresentation of fact made after
the Petition Date by any of the Debtors to Fleet or its agents about
the financial
<PAGE> 28
-26-
condition of the Debtors, the nature, extent, location or quality of
any Collateral, or the disposition or use of any Collateral, including
cash collateral;
d. a material default by any of the Debtors in the payment or
performance of any of its obligations under the Interim Order or this
Stipulation and the continuance of such default uncured for a period of
five (5) calendar days following such default; or
e. failure of MS to have filed the Sale Motion by the date set
forth in Paragraph 16 above as extended, if at all, or the withdrawal
of the Sale Motion, if otherwise timely filed, after such date.
20. This Stipulation and the cash collateral use arrangement authorized
herein shall become effective immediately upon the last to occur of (i)
authorization and approval by the Court (as evidenced by the entry of an order
in form and content reasonably satisfactory to the Debtors and Fleet), (ii)
execution by the parties to this Stipulation and (iii) written approval
delivered to Fleet by each of the Other Banks. The aforesaid arrangement and
this Stipulation, unless waived or extended in writing by Fleet, shall terminate
upon the earliest of (a) (i) the occurrence of an Event of Default and (ii)
written notice of such Event of Default filed with the Court by Fleet, (b)
denial by the Court (or any appellate court) of the Sale Motion described in
Paragraph 16 above, (c) consummation of the sale by MS of the Collateral
pursuant to the Sale Motion described in Paragraph 16 above, and (d) May 6, 1998
at 5:00 p.m. Upon termination, however occurring, the use by MS of Fleet's cash
collateral shall cease, and, except in the case of termination having occurred
as a result of MS's sale of the Collateral, the stay provisions of Section
362(a) of the Bankruptcy Code and any other injunction or stay issued by this
Court shall be deemed immediately permanently vacated and Fleet shall thereupon
be relieved of such stay and shall have the full right and power to immediately
proceed without further delay, hindrance or motion to foreclose its security
interests in the Collateral, and,
<PAGE> 29
-27-
more generally, Fleet shall have the rights provided under all the documentation
comprising the Fleet Facility and under the Uniform Commercial Code and all
other applicable law, wherever applicable, in order to realize upon the
Collateral and the security herein granted. Except as expressly provided in this
paragraph, termination of this Stipulation shall not impair the continuing
effectiveness and enforceability of all other provisions in this Stipulation. In
addition, the Debtors:
a. shall be deemed to have expressly waived any right to seek an
injunction or restraining order of any type in order to delay or
preclude enforcement of this Stipulation and specifically this
paragraph;
b. shall, and shall cause their subsidiaries to, transfer to the
Servicer or another servicer selected by Fleet collections of MS's loan
portfolio and, to the extent allowed or required by law, MS Auto's loan
portfolio. The Debtors shall, and shall cause their subsidiaries to,
cooperate with the Servicer to as efficiently as possible perform the
servicing transfer and enable the Servicer to perform ongoing servicing
of the loan portfolio as of the termination of this Stipulation;
c. shall, and shall cause their subsidiaries to, promptly deliver
to the Servicer true and correct copies of (i) the electronic files for
MS's loan portfolio, and, to the extent allowed or required by law, MS
Auto's loan portfolio, (ii) thorough and complete monthly reports of
servicing records for such loan portfolios for the past six months, and
(iii) such information regarding the system vendors, at risk accounts,
bank reconciliations, system codes and specifications and all other
information regarding such loan portfolio files and collection and
reconciliation systems as the Servicer shall reasonably require to
perform servicing of the loan portfolio;
d. without limiting the generality of subparagraph (c) above,
shall, and shall cause their subsidiaries to, provide to the Servicer,
as soon as possible
<PAGE> 30
-28-
after the 15th day and the last day of each calendar month (each such
day a "Reference Date"), ending on the earliest Reference Date next
following the turnover of Collateral pursuant to subparagraph (h)
below, copies of the items described in clauses (i) and (iii) of
subparagraph (c), as well as thorough and complete servicing records
for the loan portfolio, in each case updated through the applicable
Reference Date;
e. at any time requested by the Servicer, shall, and shall cause
their subsidiaries to, assist the Servicer in all reasonable ways
requested by the Servicer to perform reconciliation of collections, to
efficiently and accurately complete a data mapping of data from the
collection systems of the Debtors and their subsidiaries to the
Servicer's collection systems, to efficiently and accurately complete a
conversion program to effect a conversion of the collection systems of
the Debtors and their subsidiaries to the Servicer's collection
systems, and to validate and perfect the accuracy and completeness of
the data mapping and the conversion program;
f. shall consent to the right of Fleet, its nominee or the
Servicer (or any other servicer of the Collateral) to offer employment
to any employee of any of the Debtors or any of their subsidiaries,
whose job primarily has related to the collection of the MS Receivables
or the MS Auto Receivables;
g. shall provide the Servicer (or any other servicer of the
Collateral) with access to the Debtors' computer systems and rental
premises, upon request, provided that such servicer shall be obligated
to the Debtors (or any one of them) for the actual cost to that Debtor
of the service or premises so provided for the time period of actual
use;
h. shall otherwise immediately upon request by Fleet assemble and
turn over to Fleet or the Servicer all of the Collateral, including
without limitation
<PAGE> 31
-29-
all chattel paper, all proceeds thereof, and all books and records
associated therewith;
i. for a reasonable time after the date of delivery of such
Collateral, shall, and shall cause their subsidiaries to, assist Fleet
and the Servicer and cooperate with Fleet and the Servicer to
coordinate the transfer to the Servicer of payments received by the
Debtors or their subsidiaries in respect to the Collateral, the
referral to the Servicer of inquiries regarding accounts comprising
the Collateral, and the delivery by the Debtors and their subsidiaries
to the account debtors or other obligors of appropriate notices and
instructions with respect to the transfer of servicing and collection
of the Collateral to Servicer's and, generally, take all other
actions reasonably required by Fleet or the Servicer to efficiently
and effectively transfer the servicing and collection of the
Collateral to the Servicer; and
j. shall and, where applicable, their subsidiaries shall, (A) be
deemed to have terminated any obligations of MS to or for the benefit
of Search or any of its subsidiaries under any servicing agreement
relating to the management and collection of MS Receivables, and (B)
immediately upon receipt by MS of a notice of termination pursuant to
the servicing agreement relating to the management and collection of
the MS Auto Receivables, be deemed to have terminated any obligations
of MS Auto to or for the benefit of the Debtors or any of their
subsidiaries under such servicing agreement, in each case without any
penalty or cost to MS or MS Auto other than charges in the ordinary
course for services through the date of termination.
21. Any notice or report required hereunder sent via personal delivery,
overnight delivery, or facsimile transmission shall be deemed given when
received, but if sent via postage prepaid certified or registered first class
United States mail, it shall be
<PAGE> 32
-30-
deemed given three (3) business days after mailing. Items shall be addressed to
the parties as set forth below:
If to Fleet: Fleet Bank, N.A.
Mail Stop: CT MO H21B
777 Main Street
Hartford, CT 06115
(Attention: Mr. Edward J. Walsh)
Telephone: (860) 986-3784
Telecopier: (860) 986-2435
with a copy to: Edwin E. Smith, Esq.
(which is not Bingham Dana LLP
notice) 150 Federal Street
Boston, Massachusetts 02110
Telephone: (617) 951-8615
Telecopier: (617) 951-8736
and Neil W. Townsend, Esq.
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Telephone: (617) 951-8866
Telecopier: (617) 951-8736
and Scott Lessne, Esq.
Fleet Bank, N.A.
Mail Stop: CT MO H20A
Hartford, CT 06115
Telephone: (860) 986-3794
Telecopier: (860) 986-5076
If to Debtors: MS Financial, Inc.
Search Financial Services Inc.
Search Financial Services Acceptance Corp.
Search Funding Corp.
Attn: George C. Evans,
600 North Pearl Street
Suite 2500, L.B. 123
Dallas, TX 75201
Telephone: (214) 965-6000
Telecopier: (214) 965-6098
<PAGE> 33
-31-
with a copy to: Deborah Lynn Schrier-Rape, Esq.
(which is not Andrews & Kurth, L.L.P.
notice) 1717 Main Street, Suite 3700
Dallas, TX 75201
Telephone: (214) 659-4520
Telecopier: (214) 659-4401
and Ellis Regenbogen, Esq.
Search Financial Services Inc.
600 North Pearl Street
Suite 2500, L.B. 123
Dallas, TX 75201
Telephone: (214) 965-6030
Telecopier: (214) 965-6130
and James Donnell, Esq.
Andrews & Kurth, L.L.P.
600 Travis, Suite 4200
Houston, TX 77002
Telephone: (713) 220-4200
Telecopier: (713) 220-4285
and H. De Wayne Hale, Esq.
Hale, Ashton, Seckel & Taubenfeld, P.C.
600 North Pearl Street
Dallas, TX 75201
Telephone: (214) 720-2600
Telecopier: (214) 720-2665
<PAGE> 34
-32-
22. Upon the execution hereof, the Debtors will promptly take all
appropriate steps, by filing such motions and giving such notices and otherwise,
to seek Court approval of this Stipulation and the authority to consummate the
matters provided for herein.
23. This Stipulation shall be binding upon and inure to the benefit of
the successors and assigns of each party hereto, including any trustee appointed
with regard to any of the Debtors under the Bankruptcy Code, whether in a
Chapter 7 or in these Chapter 11 cases.
24. This Stipulation may be amended only by a writing executed by all
of the parties hereto.
25. This Stipulation contains the entire agreement of the parties with
respect to the transactions contemplated herein and supercedes all prior
agreements, communications and discussions, whether oral or written with respect
thereto.
26. This Stipulation may be executed in any number of counterparts,
each of which is deemed to be an original and all of which together will
constitute one and the same document.
27. Any waiver by any party of any violation of, default under or
condition expressed in this Stipulation by the other party or parties will not
be construed as, or constitute, a continuing waiver of such provision, or a
waiver of any other violation, default or condition provided for herein.
Executed as an agreement under seal this 19th day of March, 1998.
<PAGE> 35
-33-
SEARCH FINANCIAL SERVICES FLEET BANK, N.A.
ACCEPTANCE CORP.
MS FINANCIAL, INC. By its attorneys,
By their attorneys,
/s/ Guy B. Moss
-----------------------------
Guy B. Moss
/s/ Deborah Lynn Schrier-Rape Sabin Willett
- ----------------------------- Bingham Dana LLP
Deborah Lynn Schrier-Rape 150 Federal Street
State Bar No. 00785635 Boston, Massachusetts 02110
James Donnell (617) 951-8000
State Bar No. 05981300 pro hac vice
Andrews & Kurth, L.L.P.
1717 Main Street, Suite 3700 Mark A. Goodman
Dallas, TX 75201 State Bar No. 08156920
(214) 659-4100 David, Goodman & Madole
Two Lincoln Centre
SEARCH FINANCIAL SERVICES INC. 5420 LBJ Freeway, Suite 1200
SEARCH FUNDING CORP. Dallas, Texas 75240
(972) 991-0889
By their attorneys,
/s/ H. De Wayne Hale
- ---------------------------
H. De Wayne Hale
State Bar No. 04189170
Hale, Ashton, Seckel & Taubenfeld, P.C
600 North Pearl Street
Dallas, TX 75201
(214) 720-2600
<PAGE> 36
-34-
APPROVED as an Order of this Court at Dallas, Texas this ____ day of _______,
1998.
----------------------------
U. S. Bankruptcy Judge
<PAGE> 37
EXHIBIT B
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: ) CHAPTER 11
)
SEARCH FINANCIAL SERVICES ) CASE NO. 398-32129-RCM-11
ACCEPTANCE CORP., ) CASE NO. 398-32128-SAF-11
MS FINANCIAL, INC., ) CASE NO. 398-32130-SAF-11
SEARCH FUNDING CORP., ) CASE NO. 398-32131-SAF-11
SEARCH FINANCIAL SERVICES ) (Jointly Administered)
INC., )
)
DEBTORS )
)
AMENDMENT TO
STIPULATION AUTHORIZING LIMITED USE OF CASH COLLATERAL AND
PROVIDING CERTAIN REMEDIES TO SECURED CREDITOR
MS Financial, Inc., Debtor and Debtor-In-Possession, a Delaware
corporation ("MS"), Search Financial Services Inc., Debtor and
Debtor-in-Possession, a Delaware corporation and the sole shareholder of MS
("Search"), Search Financial Services Acceptance Corp., Debtor and
Debtor-In-Possession, a Texas corporation and a subsidiary of Search ("Search
Acceptance"), and Search Funding Corp., Debtor and Debtor-In-Possession, a Texas
corporation and a subsidiary of Search ("Search Funding", and together with MS,
Search and Search Acceptance, the "Debtors") and Fleet Bank, N.A., for itself
and as agent for other banks in the lending group ("Fleet"), MS's pre-petition
secured lender, hereby stipulate and agree to amend the Stipulation Authorizing
Limited Use of Cash Collateral and Providing Certain Remedies to Secured
Creditor dated March 19, 1998 (the "Stipulation"), among the Debtors and Fleet
as follows:
<PAGE> 38
-2-
1. Clause (a)(ii) of the second sentence of Paragraph 20 of the
Stipulation is hereby amended by deleting such clause and by substituting
therefor the following words:
in the case of an Event of Default set forth in Paragraph 19(b) or
(e), written notice of such Event of Default having been filed with the
Court by Fleet, and in the case of an Event of Default set forth in
Paragraph 19(a), (c) or (d), the following events having occurred: (A)
written notice of such Event of Default having been given by Fleet to
the Debtors and having been filed with the Court by Fleet, (B) the
passage of seven business days following the giving of such notice and
the making of such filing and (C) the failure of the Debtors to cure
such Event of Default during such seven business day period.
2. Paragraph 20 of the Stipulation is hereby further amended by
inserting after the second sentence of Paragraph 20 the following new sentence.
During the seven business day period referred to in clause (a)(ii)
above, the Debtors shall be entitled to an expedited hearing before the
Court, the sole purpose of which shall be to determine whether the
Event of Default claimed by Fleet to have occurred has in fact occurred
and has not been cured, with no such termination being effective if the
Court finds during such period either that such Event of Default has
not occurred or has been cured.
3. Except as set forth above, the Stipulation shall remained
unmodified and shall continue in effect in accordance with its terms.
Executed as an agreement under seal this 13th day of April, 1998.
<PAGE> 39
-3-
SEARCH FINANCIAL SERVICES FLEET BANK, N.A.
ACCEPTANCE CORP.
MS FINANCIAL, INC. By its attorneys,
By their attorneys,
/s/ Guy B. Moss
------------------------------
Guy B. Moss
/s/ Deborah Lynn Schrier-Rape Sabin Willett
- ------------------------------ Bingham Dana LLP
Deborah Lynn Schrier-Rape 150 Federal Street
State Bar No. 00785635 Boston, Massachusetts 02110
James Donnell (617) 951-8000
State Bar No. 05981300 pro hac vice
Kevin D. McCullough
State Bar No. 00788005 Mark A. Goodman
Andrews & Kurth, L.L.P. State Bar No. 08156920
1717 Main Street, Suite 3700 David, Goodman & Madole
Dallas, TX 75201 Two Lincoln Centre
(214) 659-4100 5420 LBJ Freeway, Suite 1200
Dallas, Texas 75240
SEARCH FINANCIAL SERVICES INC. (972) 991-0889
SEARCH FUNDING CORP.
By their attorneys,
/s/ H. De Wayne Hale
- ------------------------------
H. De Wayne Hale
State Bar No. 04189170
Hale, Ashton, Seckel & Taubenfeld, P.C
600 North Pearl Street
Dallas, TX 75201
(214) 720-2600
